DIRECTOR OF FIN., PR. GEO'S CTY. v. Cole

⁶³⁴ Thompson, J., delivered the opinion of the Court. Article 27, § 264 of the Annotated Code of Maryland (1957, 1976 Repl. Vol., 1980 Cum. Supp.) provides for the forfeiture to the state or local government of "money, currency, or cash” seized by its police officers in connection with arrests for illegal gambling.

The issue on this appeal is whether, under this section, the court below, which correctly sustained a demurrer to a petition for forfeiture of money seized in connection with the arrest of the appellees herein for gambling offenses, erred in also ordering that the seized money be returned to the appellees. For the reasons set forth below, we hold it did. On October 31, 1977, Richard Denmeade Cole, Cynthia Gezelle, and Edward George Busby, the appellees, were arrested in Prince George’s County and charged with various gambling offenses. Incident to the arrest, the police seized $15,500 in cash, belonging to the appellees, along with gambling devices and paraphernalia.

The money seized was turned over to the Director of Finance of Prince George’s County (County), the appellant herein, and held, pending disposition of the charges, in accordance with § 264 (b). In January, 1980, a nolle prosequi was entered on all of the charges against the appellees; within 90 days thereafter the County filed a petition in the Circuit Court for Prince George’s County seeking forfeiture of the seized money under § 264 (c). The appellees demurred to the petition on the grounds that it did not allege that they had been convicted of the gambling offenses for which they had been arrested and the court below sustained the demurrer. In addition, although the appellees had not filed a counter-claim or a separate action seeking return of the money, the court, "based on [its] inherent equity powers,” ordered that the money be returned to the appellees.

It is from this latter order that the County has appealed. Section 264 (a) provides that "[w]henever any money, currency, or cash is seized or captured by any police officer in this State in connection with any arrest for . .. [illegal gambling] ..., all such money ... shall be deemed prima ⁶³⁵ facie to be contraband of law as a gambling device or as a part of a gambling operation.” This section further provides: "All rights, title, and interest in and to such money, ... seized by the police . .. shall immediately vest in and to the local governments of the county, municipality, or Baltimore City, or if seized by State authorities, to the State, and no such money . .. shall be returned to any person . .. except as provided in this section.” Section 264 (c) provides that "[i]f the trial or other ultimate disposition of such charge . .. results in a record of conviction being entered against the person or persons so arrested, . .. the county treasurer ..., shall within 90 days from the date of the record of the entry of such conviction,... make application to the . . . court .. . for an order declaring ... that such money ... shall be forfeited ..manifestly, the entry of a conviction is a condition precedent to the filing of a petition for forfeiture by the County. As the County here concedes, the court below was correct in sustaining the appellee’s demurrer where a nolle prosequi was entered as to the criminal charges against the appellees. It does not necessarily follow that, because the County could not properly file a petition for forfeiture, the appellees were entitled to the return of the seized money.

Although formerly § 264 (d) provided that "[i]f